MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 15 2017, 9:25 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kevin Govan Curtis T. Hill, Jr.
Westville, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Govan, May 15, 2017
Appellant-Defendant, Court of Appeals Case No.
02A04-1608-CR-1880
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D04-0411-FB-196
Vaidik, Chief Judge.
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Case Summary
[1] Kevin Govan appeals the denial of his motion to correct erroneous sentence.
Finding no error, we affirm.
Facts and Procedural History
[2] In 2005, Govan was convicted of two counts of Class B felony criminal
confinement. The trial court imposed a sentence of forty years, consisting of
consecutive twenty-year terms on each count: fifteen years plus five years under
Indiana Code section 35-50-2-11, which allows for sentence enhancements for
certain offenses (including Class B felony criminal confinement) where a
defendant “used a firearm in the commission of the offense.” In June 2016,
Govan filed a motion to correct erroneous sentence, claiming that the firearm
enhancements are improper. The trial court denied the motion, and Govan
now appeals.
Discussion and Decision
[3] Govan contends that the trial court erred when it imposed the firearm
enhancements and that it erred again when it denied his motion to correct
erroneous sentence. A trial court can grant a motion to correct erroneous
sentence only where an error is “clear from the face of the judgment imposing
the sentence in light of the statutory authority.” Robinson v. State, 805 N.E.2d
783, 787 (Ind. 2004). “Claims that require consideration of the proceedings
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before, during, or after trial may not be presented by way of a motion to correct
sentence.” Id.
[4] Govan challenges his firearm enhancements on two grounds, neither of which
is convincing. First, he argues that the firearm-enhancement statute, Indiana
Code section 35-50-2-11, allows only one enhancement to be imposed in any
given case. The statute allows for the imposition of “an additional fixed term of
imprisonment” on top of the base sentence for certain offenses if the defendant
“used a firearm in the commission of the offense[.]” I.C. § 35-50-2-11. Govan
reads the phrase “an additional fixed term”—singular—to mean that a trial
court cannot impose multiple additional terms—plural—in one case, regardless
of the number of offenses committed or the particular facts of the case. Govan
does not cite any authority that interprets the statute the way he does, and we
are not aware of any. To the contrary, the inclusion of the phrase “commission
of the offense” (emphasis added) in the same provision indicates that the phrase
“an additional fixed term of imprisonment” is simply a general reference to the
enhancement of the sentence imposed for one offense. In other words, the plain
text of the statute does not completely foreclose the imposition of multiple
firearm enhancements when there are multiple offenses.
[5] Of course, the fact that the statute does not absolutely prohibit multiple
enhancements in a single case does not mean that it permits multiple
enhancements whenever a defendant is convicted of multiple enhancement-
eligible crimes. Nor does it mean that multiple enhancements would survive a
constitutional double-jeopardy analysis even if permitted by the bare text of the
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statute. But determining whether multiple enhancements are permissible in a
particular case would require us to know the specific facts of that case, which in
turn would require us to venture beyond the face of the judgment.1 Govan has
not asked us to do that here, recognizing that we cannot do so on a motion to
correct erroneous sentence. See Robinson, 805 N.E.2d at 787; see also Appellant’s
Reply Br. pp. 4-5. The only argument Govan makes is that the text of Section
35-50-2-11 prohibits the imposition of multiple firearm enhancements in any
one case as a matter of law, regardless of the facts. He is incorrect.2
[6] Govan’s second argument is based on the requirement that any enhancement be
sought “on a page separate from the rest of the charging instrument[.]” I.C. §
35-50-2-11. As Govan points out, the Judgment of Conviction indicates that
the two enhancements were sought as “Part 2” of each of the two criminal-
confinement counts. Appellant’s App. Vol. II p. 12. Govan argues that the
State was instead required to charge the enhancements as entirely separate
“counts” against him. Appellant’s Br. p. 9. But the statute does not include
such a requirement. It merely directs the State to seek any firearm
enhancement “on a page separate from the rest of the charging information,”
and Govan does not allege, let alone demonstrate, that the State failed to do so.
1
For example, we would need to know whether the offenses being enhanced were part of a single criminal
episode or transaction or instead were separate or unrelated.
2
The General Assembly amended Section 35-50-2-11 while Govan’s original criminal case was pending in
2005 and has amended it several times since, but Govan does not contend that any of the amendments are
relevant to our decision.
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[7] Because any error in Govan’s sentence is not “clear from the face of the
judgment,” see Robinson, 805 N.E.2d at 787, the trial court properly denied
Govan’s motion.
[8] Affirmed.
Bailey, J., and Robb, J., concur.
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